Monday, 10 January 2011

European values and Hungarian media law: ECHR

The discussion about the Hungarian media law prone to arbitrary implementation has revealed profound ignorance about or lack of care for European values, even outright denial of their existence.

For the legal text (to the extent that the Act has been translated) you can go to

Act CLXXXV of 2010 on media services and mass media (in English)

The text on is followed by a lot of comments discussing the law (48 by now), even if they reflect only a tiny proportion of an ongoing discussion in many media articles and blog posts.


I have tried to shed some light on political and legal aspects of freedom of speech in Europe in earlier blog posts:

Help EPP group leader Joseph Daul defend media freedom (5 January 2011)

EPP president Wilfried Martens versus Free Press for Hungary (5 January 2011)

Hungarian media law and EU Council presidency: Evolving European opinion (8 January 2011)

Hungary: Is free speech a socialist issue? (9 January 2011)

Presidency or Troll? Describing itself as the unofficial troll blog of the Hungarian presidency, EUphobia made its confused and confusing appearance on the Euroblog scene: The Party has Started (8 January 2011). If I understand the blog entry and the following discussion correctly, the Hungarian media law is bad, but press freedom needs to be suppressed in Hungary for partisan reasons. EUphobia seems to imply that there are no European standards to uphold.

Council of Europe (CoE)

All the members of the European Union (EU) are members of the pan-European Council of Europe (CoE) and thus parties to the European Convention on Human Rights and Fundamental Freedoms (ECHR), an evolving system of protection of the rights of citizens against abuse by governments and public authorities, as shown by the preamble:

The governments signatory hereto, being members of the Council of Europe,

Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10th December 1948;

Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared;

Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms;

Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend;

Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration,

Have agreed as follows: ---

The ratifying states have not only declared their profound belief in the fundamental freedoms, but pledged a common understanding and observance of human rights, which are legally binding in every member state of the CoE.

In short, the purpose is to give citizens' rights and freedoms teeth:

Article 1 – Obligation to respect human rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Key word ”secure”.

Freedom of expression

Section 1 of the ECHR contains Article 10, which enshrines the freedom of expression:

Article 10 – Freedom of expression

1.Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

This text binds national legislators, governments and public administrations, as well as Courts. Ultimately observance of the engagements undertaken by the member states is ensured by the European Court of Human Rights (ECtHR). (See Article 19)

As we see, some restrictions are possible on freedom of expression, but they have to be strictly justifiable. Let me make just two points: 1) ”Interference” by public authority is a much wider concept than crude prior censorship; 2) Conditions have to be prescribed by law, ”necessary in a democratic society” and they have to be based on the enumerated grounds.

Rich pickings are available on the ECtHR's search portal Hudoc for those who are interested in case law can find. I link to newer cases concerning ECHR Article 10.

The good fight

In the end governments miss the whole purpose of protecting the health of their democratic system and the rights of individuals if they propel themselves into a race to the bottom and a competition who can get away with the least.

We are, at least hopefully, dealing with the rights of humans, not maximising those of governments at the expense of citizens, despite the obvious temptations.

Individual politicians, politcal parties at national and European level, legislatures, governments and public authorities should compete to improve the standards and observance of human rights and fundamental freedoms, including free speech, in order to be able to claim at the end of the day: I have fought the good fight, I have finished the course, I have kept the faith.

This is what European values are about.

Ralf Grahn

P.S. Anarchic in spirit, but vigilant for the rights of EU netizens is @telecomix on Twitter, describing itself in the following terms: The Telecomix News Agency aims to inform about the telecoms package, ACTA, data retention, net neutrality and censorship within EU and the rest of the world. Worth following.